Articles Posted inCustody

If you have a final decree or final order in a family law case with an obvious mistake from what the trial court ordered or the parties agreed, you can get it fixed through what is called a Nunc Pro Tunc. The key is that this mistake has to be a clerical error—did it mix up the judgment of the court. It cannot be one that requires “judicial reasoning and determination” or in other words any thought process on the judge’s part. If it is in fact a clerical error, then under Texas Rules of Civil Procedure, the trial court can fix this clerical error at any time.

What is an Example of a Clerical Error?

In Bernardo Reyes v. Olga Reyes, the Amarillo Seventh District Court of Appeals had to address this issue. In that case, the trial court made an initial order on the record divorcing the parties and making appropriate orders regarding conservatorship and child support. Most importantly, the trial court ordered that mother be the parent who has the exclusive right to designate the primary residence of the children and father to pay child support. The trial court rendered the orders on the record but the final decree was never actually signed by the court until three years later. The problem was that the actual decree ordered mother to pay child support. Mom filed a nunc pro tunc to fix this obvious error. The trial court entered the nunc pro tunc, correcting the error that it was actually father who was supposed to be paying child support. Father challenged that. In reviewing the trial court’s record, the appellate court was able to determine that this was in fact a clerical error and affirmed the trial court’s ruling.

What do I do if my Orders are wrong?

Make sure that the error in the orders is due to someone’s name being incorrectly used or incorrect numbers, etc. Child support is a typical area where nunc pro tunc orders are used. If you find an error, file a nunc pro tunc as soon as possible. It is always better to correct the error when you find it. If you are facing this situation, contact a family law attorney at Guest & Gray for a free consultation.

You just finalized your divorce or custody matter, however it seems like every time you turn around you think that your child should live with you instead of the other parent primarily of the time. Even though it is has not even been a year yet since your final orders were rendered, it just seems as though something is constantly coming up and you are genuinely concerned. The other parent may be endangering the child’s physical welfare or emotional development such as engaging in criminal activity, drug usage, physical/mental/sexual abuse, or overall endangerment of the child. You want to change the custody orders now but you have been told that there are certain roadblocks in requesting the modification this soon. What should you expect?

Less than One Year Requirements

If you are filing your petition to change the parent who has the exclusive right to designate the child’s residence in less than one year, there are specific requirements that you must follow. In fact, you must qualify within these statutory parameters to even file your case. The most important and crucial requirement is the affidavit that must be attached to your petition. In fact, Texas Family Code Section 156.102 mandates that an affidavit must be attached to your pleadings and “(b) must contain, along with supporting facts, at least one of the following allegations: (1) that the child’s present environment may endanger the child’s physical health or significantly impair the child’s emotional development; (2) that the person who has the exclusive right to designate the primary residence of the child is the person seeking or consenting to the modification and the modification is in the best interest of the child; or (3) that the person who has the exclusive right to designate the primary residence of the child has voluntarily relinquished the primary care and possession of the child for at least 6 months and the modification is in the best interest of the child.” Frequently, we see the first requirement being the grounds on which someone files a modification. Allegations are made that something bad has happened in the other parent’s care and this is why that parent should no longer have possession of the child. But, the key is that the allegations must be made in the affidavit. Many people get hung up on this requirement and many times affidavits fall short on their face.

What’s in an Affidavit?

This issue was discussed recently in an appellate case from the 14th Court of Appeals in In the Interest of A.D. There, mom appealed the trial court’s decision to allow dad to be primary in a case less than one year and said that his affidavit was not sufficient. Mom had made several false sexual abuse allegations against dad regarding their daughter over the course of an entire year. The trial court found that this behavior on mom’s part was physically and emotionally dangerous and detrimental to the child and therefore awarded primary to dad. Mom requested a jury trial over the matter in which several experts and witnesses testified that mom had made severely poor decisions regarding the child and these sexual abuse allegations. That is, even though every professional (including police, CPS, and doctors) ruled this out, she continued to pursue it. The jury ruled that dad should continue to be primary and mom appealed arguing that the court’s decision was improper and that the dad’s affidavit was not sufficient.

However, the Court of Appeals disagreed and reiterated the standard from Texas Family Code Section 156.102(c) which states that “The Court shall deny the relief sought and refuse to schedule a hearing for modification under this section unless the court determines, on the basis of the affidavit, that facts adequate to support an allegation in (b) are stated within the affidavit.” Therefore, the Court must look to the affidavit on its face to determine if it can move forward with a hearing on modification. This is why it is so important that your affidavit contain all of the allegations and facts that you believe would necessitate a modification and it would not hurt to include the “magic language” from subsection (b) either. The Court of Appeals also clarified that the trial courts are to just look to the facts of the affidavit and if they were true, would that justify having a hearing. Therefore, this is the key part that most people miss—the trial court should have a hearing if the affidavit alleges facts showing “the child’s present environment may endanger the child’s physical health or significantly impair the child’s emotional development”. Thus, you do not have to prove the allegations are true before a hearing is held—just have to prove that they are true at the hearing to bring about the change you are requesting.

For any additional information regarding modifications in less than one year, schedule a free consultation with Guest & Gray today. Our family law team is ready to help.

Unfortunately, there are several horror stories about parties appearing pro se (without legal representation) in divorce, child custody, child support, etc. cases. In fact, most of the time people make the mistake thinking that they can take care of the case themselves and then realize after the fact that they completely screwed it all up. They then come to hire an attorney to unscrew those problems, which is most of the time easier said than done. The best advice that can be given is to hire an attorney right at the beginning to ensure that you are fully protected and correctly advised throughout the entire proceeding. You do not want to go through an entire divorce and then realize that you did something very bad and then try to appeal it, also on your own. Because it can almost be guaranteed that if you attempt the second feat, appealing a case, on your own it will most definitely not go in your favor.

This issue was directly addressed in In the Interest of C.M., A Child by the 5th District Court of Appeals in Dallas. In that case, the mother and father appeared and agreed to the terms of their divorce, including the child custody terms. The Court, on the record, ensured several times that the mother understood what she was agreeing to and that this was in fact the final hearing and final orders to which the mother replied that she did understand. Unfortunately, the mother realized what she had agreed to post-prove up and realized that basically stripped her of parental rights and left her with only supervised visits. Therefore, without representation she thought she would appeal the divorce orders with respect to custody stating that she did not understand and she did not consent to the terms as they were based on “false accusations that were not proven.” However, the Court of Appeals revealed the record of testimony (which is made at all prove ups) and discovered that she did consent to the terms, several times, and even stated she understood several times.

What most people do not understand when they represent themselves is that they do have a right, when facing a consent judgment or agreed order, to withdraw your consent at any time before the judgment is rendered by the court. So, the problem in this case was that mother had failed to do that and was trying to withdraw her consent post-divorce which the Court of Appeals held cannot happen. In fact, the Court stated, “Agreed judgments, once rendered, are contracts between the parties that excuse error and operate to end all controversy between the parties.” Pate v. Pate, 874 S.W.2d 186, 188 (Tex. App.—Houston [14th Dist.] 1994, writ denied. Therefore, the Court held that they believed the mother’s appeal “was intended to constitute a withdrawal of her consent to the terms agreed upon at the bench trial” which was improper. In the Interest of C.M., at page 11.

The Court held that while they do treat pro se litigants’ briefs liberally, they do not hold pro se litigants to a lower threshold of standards. Therefore, based upon the fact that the mother did not meet her burden, her appeal was denied. It is possible, had she had an attorney throughout this process, that things might have ended a little more positive in her favor.

If you are facing a family law issue, do not wait until it is too late. Do not become a part of the statistics of pro se litigants who need help after the fact. Schedule a free consult today with Guest & Gray, our family law team is ready to help. We look forward to working with you.

You have a pending case involving a child (divorce, SAPCR, modification) and child support has been established. However, like most parents you are concerned about the future—what happens when the children go to college, how will I afford their expenses then? Most people say that you can “save the child support” but that is not ideal. Children are expensive and it is highly likely that you will spend all of the child support and then some with all of the things that come up throughout their lives until they turn 18 or graduate from high school. Child support ends on “removal of the child’s disabilities for general purposes, the marriage or death of a child, or a finding by the court that the child is 18 years of age or older and is no longer enrolled in high school or a high-school equivalent program.” In the Interest of W.R.B. and B.K.B., Children. So, what are your options to ensure that your children can get a college education and have support from the other parent?

This issue is addressed in In the Interest of W.R.B. and B.K.B., Children from the 5th District Court of Appeals in Dallas. There, the Dallas Court of Appeals addressed the issue of post-majority support which is defined as applying “only to a non-disabled child who is 18 years of age or older and is no longer enrolled in high school or a high-school equivalent program” Tex. Fam. Code Section 154.001(a). Therefore, this creates or allows for a specific scenario in which the other parent would still be required to make support payments. In this case, the Court held that the trial court cannot order post-majority support on its own volition but the parties can agree to post-majority support in writing. In the agreed modification orders, the parties had done just that. Therefore, the Court of Appeals held that it was proper for the trial court to render the order of post-majority support. However, the issue then became that the obligor parent stopped paying the post-majority expenses and so the recipient or obligee parent filed an enforcement action seeking reimbursement of all of the expenses, attorneys’ fees and interest.

The Dallas Court of Appeals held that for post-majority support, this is after the child ages out and was based purely upon the parties’ agreement and so therefore it is not enforceable in a family law court under the Texas Family Code. Rather, the proper avenue is breach of contract. This is because the agreed orders, with respect to the post-majority support, are considered a contract because it is an agreement of the parties not based upon legal authority. This is unlike the issue of child support that was ordered which remains enforceable even post-aging out of the children because the Court still maintains jurisdiction over that issue as it was awarded under the family code.

With respect to consequences of breaching the contract, the Court held that it would be ideal if the parties not only agreed to the post-majority support but also agreed to the consequences if said support was not paid. This would distinctly provide a source of remedies for a court to look to on the breach of contract claim. In this particular case, the parties failed to do so and therefore it was difficult for the Court to ascertain what the proper remedies should be—this case is not like a typical enforcement case where, if in fact found to be in arrears, the conduct is punishable by contempt which could be confinement or suspension of confinement, confirmation of arrears, and award of attorneys’ fees. Therefore, it is clear that this Court made a suggestion for future cases involving post-majority support—create a bright line rule in your orders as to what happens if either party violates that agreement.

Also, the Court offered guidance for future cases involving reimbursement claims of this nature where there are actual child support arrears and post-majority support arrears. If you have a case of this nature, for the child support your avenue is enforcement. However, for the post-majority arrears you must separate that into a separate breach of contract cause of action and also distinctly separate the expenses out for the court. You want the court to be able to look at your itemized spreadsheets and be clear on all expenses and totals being claimed; otherwise, you might have your entire case thrown out and not recover the funds.

Clearly, this is a unique issue that should not be taken lightly. It is one that you have to ensure you get the language in the court order just right to ensure that you can in fact have a remedy if the order is violated. If you are facing a case in which you think you would require post-majority support OR a case in which you need to sue for arrears on post-majority support, please call us today at Guest & Gray for your free consult.

You may not think that this distinction is important, but in the world of family law it is imperative that you understand the difference. It could be the difference between you actually being the father of a child in the eyes of the law as well as differing burdens of how to overcome that label if you are not the child’s biological father. In fact, if you are in the middle of a divorce or a suit affecting the parent child relationship, knowing your definitions is crucial when it comes to duties to support children and your rights to visiting those children.

Texas Family Code Section 101.0015 defines alleged father as a man who “alleges himself to be, or is alleged to be, the genetic father or a possible genetic father of a child, but whose paternity has not been determined.” So, if you think that you are the father of a child but it has not been concluded by court ordered genetic testing—then you are an alleged father. We see this type of scenario come up in situations such as cases involving the Attorney General’s Office of Texas. If a woman petitions the Attorney General’s Office for child support, then that agency will file a lawsuit and have all of the alleged fathers served. It is then your duty to ask for genetic testing if there is any doubt in your mind about whether or not you are the father. Once genetic testing is completed and paternity is established, you then become an adjudicated father. Adjudicated father is defined in Texas Family Code Section 160.102(1) as a man who is determined to be the father of a child by the Court. Therefore, once your paternity is established by results of genetic testing then the Court will name you as the father and proceed forward with child support, visitation, etc.

In contrast, Texas Family Code Section 160.204 defines a presumed father as follows:

(a) A man is presumed to be the father of a child if:

(1) he is married to the mother of the child and the child is born during the marriage;

(2) he is married to the mother of the child and the child is born before the 301st day after the date the marriage is terminated by death, annulment, declaration of invalidity, or divorce;

(3) he married the mother of the child before the birth of the child in apparent compliance with law, even if the attempted marriage is or could be declared invalid, and the child is born during the invalid marriage or before the 301st day after the date the marriage is terminated by death, annulment, declaration of invalidity, or divorce;

(4) he married the mother of the child after the birth of the child in apparent compliance with law, regardless of whether the marriage is or could be declared invalid, he voluntarily asserted his paternity of the child, and:

(A) the assertion is in a record filed with the bureau of vital statistics;

(B) he is voluntarily named as the child’s father on the child’s birth certificate; or

(C) he promised in a record to support the child as his own; or

(5) during the first two years of the child’s life, he continuously resided in the household in which the child resided and he represented to others that the child was his own.

(b) A presumption of paternity established under this section may be rebutted only by:

(2) the filing of a valid denial of paternity by a presumedfather in conjunction with the filing by another person of a valid acknowledgment of paternity as provided by Section 160.305

As you can imagine, we see this type of scenario in a divorce situation. It becomes a contested issue when the wife has an affair and becomes pregnant—many men fall into the trap of thinking that they do not have to do anything because the child is clearly not their biological child. However, that is an unfortunate misconception per the Family Code Section listed above. You must ensure that you are not adjudicated the father of the child. Also, you cannot get divorced while your wife is pregnant with the other child. This is because you must go through the genetic testing to prove you are not the child’s father.

Determining which type of father you are is only one of the tasks of our family law team here at Guest & Gray. Contact us to schedule your free consultation today. We look forward to helping you in your family law case.

Many parents, grandparents, and even professionals do not fully understand their duty to report child abuse let alone the consequences for their failure to report. But what about such duty to report of just an ordinary person? That is right; ANYONE who has knowledge or reason to believe that a child is being abused in any way must report it to the appropriate agency. That agency would be the Texas Department of Family and Protective Services, your local law enforcement and even your local district attorney’s office. The family code does not exclude anyone in the duty to report. Examples of professionals would be teachers, attorneys, doctors, nurses, and daycare employees.

Chapter 261 of the Texas Family Code encompasses the duty to report, definitions, etc. Once you have determined what abuse or neglect means in Texas, and you know a child who is being subjected to such acts, you must report it. Unfortunately, many of the cases we see are children being sexually or physically abused. Once you learn of this abuse, what do you need to do?

Texas Family Code Section 261.101 legislates and defines those who are required to report as follows:

Sec. 261.101. PERSONS REQUIRED TO REPORT; TIME TO REPORT. (a) A person having cause to believe that a child’s physical or mental health or welfare has been adversely affected by abuse or neglect by any person shall immediately make a report as provided by this subchapter.

(b) If a professional has cause to believe that a child has been abused or neglected or may be abused or neglected, or that a child is a victim of an offense under Section 21.11, Penal Code, and the professional has cause to believe that the child has been abused as defined by Section 261.001 or 261.401, the professional shall make a report not later than the 48th hour after the hour the professional first suspects that the child has been or may be abused or neglected or is a victim of an offense under Section 21.11, Penal Code. A professional may not delegate to or rely on another person to make the report. In this subsection, “professional” means an individual who is licensed or certified by the state or who is an employee of a facility licensed, certified, or operated by the state and who, in the normal course of official duties or duties for which a license or certification is required, has direct contact with children. The term includes teachers, nurses, doctors, day-care employees, employees of a clinic or health care facility that provides reproductive services, juvenile probation officers, and juvenile detention or correctional officers.

(c) The requirement to report under this section applies without exception to an individual whose personal communications may otherwise be privileged, including an attorney, a member of the clergy, a medical practitioner, a social worker, a mental health professional, and an employee of a clinic or health care facility that provides reproductive services.

(d) Unless waived in writing by the person making the report, the identity of an individual making a report under this chapter is confidential and may be disclosed only:

(1) as provided by Section 261.201; or

(2) to a law enforcement officer for the purposes of conducting a criminal investigation of the report.

Many people fail to report child abuse or neglect because they are afraid of the backlash that they may receive. In fact, some people talk themselves out of it saying that they cannot be certain about it and they worry about what if they are wrong, what will happen to them. The definition is clear—“cause to believe”. Did the child show up at school with bruises on their backside or on their face? The important thing to know is that you cannot get in trouble if you have a reason to believe that the abuse is taking place. In fact, Texas Family Code Section 261.106 makes that abundantly clear.

Sec. 261.106. IMMUNITIES. (a) A person acting in good faith who reports or assists in the investigation of a report of alleged child abuse or neglect or who testifies or otherwise participates in a judicial proceeding arising from a report, petition, or investigation of alleged child abuse or neglect is immune from civil or criminal liability that might otherwise be incurred or imposed.

(b) Immunity from civil and criminal liability extends to an authorized volunteer of the department or a law enforcement officer who participates at the request of the department in an investigation of alleged or suspected abuse or neglect or in an action arising from an investigation if the person was acting in good faith and in the scope of the person’s responsibilities.

(c) A person who reports the person’s own abuse or neglect of a child or who acts in bad faith or with malicious purpose in reporting alleged child abuse or neglect is not immune from civil or criminal liability.

The worse thing to worry about is what would happen to you if you did not report and someone found out. We see this arise a lot when it comes to grandparents or even parents. A court case will begin on instances of abuse; however, the person claiming the abuse failed to make a report to the appropriate agency. It is a crime, one which can be pursued against you.

Sec. 261.109. FAILURE TO REPORT; PENALTY. (a) A person commits an offense if the person has cause to believe that a child’s physical or mental health or welfare has been or may be adversely affected by abuse or neglect and knowingly fails to report as provided in this chapter.

(b) An offense under this section is a Class A misdemeanor, except that the offense is a state jail felony if it is shown on the trial of the offense that the child was a person with mental retardation who resided in a state supported living center, the ICF-MR component of the Rio Grande State Center, or a facility licensed under Chapter 252, Health and Safety Code, and the actor knew that the child had suffered serious bodily injury as a result of the abuse or neglect.

The issue arises when people start making reports to spite one another. For instance, we have had several instances of divorces where parents make sexual abuse claims against the other parent involving one or all of the children part of the divorce. This happens because both parents might be competing for the exclusive right to designate primary residence. However, many people do not realize that this is in fact a crime.

Sec. 261.107. FALSE REPORT; CRIMINAL PENALTY; CIVIL PENALTY. (a) A person commits an offense if, with the intent to deceive, the person knowingly makes a report as provided in this chapter that is false. An offense under this subsection is a state jail felony unless it is shown on the trial of the offense that the person has previously been convicted under this section, in which case the offense is a felony of the third degree.

(b) A finding by a court in a suit affecting the parent-child relationship that a report made under this chapter before or during the suit was false or lacking factual foundation may be grounds for the court to modify an order providing for possession of or access to the child who was the subject of the report by restricting further access to the child by the person who made the report.

(c) The appropriate county prosecuting attorney shall be responsible for the prosecution of an offense under this section.

(d) The court shall order a person who is convicted of an offense under Subsection (a) to pay any reasonable attorney’s fees incurred by the person who was falsely accused of abuse or neglect in any proceeding relating to the false report.

(e) A person who engages in conduct described by Subsection (a) is liable to the state for a civil penalty of $1,000. The attorney general shall bring an action to recover a civil penalty authorized by this subsection.

If you have any knowledge of child abuse or neglect, report it today. Do not wait until you have hard proof, all you need is “cause to believe.” You may be saving a child’s life. For your convenience, you can contact the Texas Department of Family and Protective Service’s child abuse hotline at 1-800-252-5400. If your case involves a situation in which you believe you would want to seek custody of this child, contact us today at Guest & Gray to schedule a free consultation regarding your family law case. Understand, however, that if you have not reported the child abuse then even our attorneys have the duty to report the said abuse. It is never too late to make the right decision. We look forward to helping you.

I am by no means a licensed mental health professional, psychologist or psychiatrist; however if you have been a follower of my blog regarding divorce, child custody, or any family law issue you know that I constantly write about the psychological tolls that the cases take on my clients. This is because I witness every day the psychological struggles that my clients go through. Divorce is hard on everyone involved, no matter how you slice it. Many people hear this, but do not actually understand until they are in the trenches. However, it is so important to understand, for your mental and physical health, before you are in the trenches that this will be a difficult process and have a list of coping mechanisms to help you through it.

So many people fall into the trap of bitterness, anger and resentment and cannot get past those emotions. While I will agree that your feelings are legitimate, you also need to work through those feelings so that you can get to the other side and feel a release. Many people hang on, even after the divorce is finalized. I have seen what this does to people, and I do not wish it on anyone. Getting past that anger is not an easy feat, but one that is beyond necessary.

Also, divorce is difficult because it bring change—the familiarity is no longer there, you have to move, your holidays are not the same, you lose a pet, you have to split the time with the children, etc. Change is so hard and I will be the first to admit that I hate it. But, change is a part of life; in fact, life is about seasons and weathering those seasons. How will you weather in a mentally healthy way?

For children, divorce is scary and they do not understand it. They cannot process why mommy and daddy do not love each other anymore. If you are in the middle of a divorce or are considering it and you have children, take a parenting class now. You should definitely address these feelings on the front end rather than in the midst of the storm. For example, For Kids’ Sake is a parenting class offered to help parents understand how their divorce is affecting their children and gives them tools to help the children cope through this. To understand what your bickering, pointing fingers, talking about daddy in front of them, etc. does to the children will truly convict and humble you. If your children can see you both on a united front to love and protect them in the very beginning, it will help the process in so many ways. But, if you are in the middle or even already divorce, it is absolutely not too late. It is never too late to work on parental relationships. Your children just need to know that no matter what happens, they will always be loved, they will always have access to both parents, and they will always be protected.

So, I discussed having coping mechanisms in your arsenal so that you can get through this; but, what would they be? I tell my clients to do what makes you happy—do you love to go walking; do you like to run; do you like to work out; do you enjoy playing a musical instrument; whatever you like to do, do it. But, it is also important to enroll in counseling or something of this nature. Many people do not realize it because they are in denial; but, you do need help working through those difficult emotions. If you do not want to or cannot afford formal counseling, a lot of churches and other institutions offer support groups that are specialized for loss, grieving, and even divorcees. Finding someone that you can vent to is such an achievement because then you are able to get it all out so that you do not bring it into the courtroom. Also, you will find yourself less inclined to discuss this with your children and maybe even less angry with your soon to be ex-spouse. Having the opportunity to be heard is half of the battle. Just be sure that the company you keep is the encouraging kind and not the kind that will keep you in the negative rut. Remember that life is short; this divorce is just a season, and after winter comes spring.

In Texas, if the child custody visitation schedules are court-ordered they are typically either standard possession or expanded standard possession (alternate beginning and ending times). One parent will have the exclusive right to designate the child’s primary residence and then the non-primary parent has the visitation schedule. In contrast to the school year, summer and spring break visitation schedule, the holiday visitation schedule is regardless of distance between the parents’ residences and most courts only focus on Thanksgiving, Christmas, Mother’s Day and Father’s Day. However, additional holidays can be requested and ordered such as Easter, Halloween, etc.

In custody orders, holidays are divided out as even and odd years. So, if you are the primary parent you typically have odd Christmas and even Thanksgiving. A parent will not have the same year for both holidays. Because Christmas falls in an odd year this year, the primary parent would have possession of the child from the day the child is released from school until December 28 at noon. Texas Family Code Section 153.314 specifically sets out the language for the court orders and is follows:

Sec. 153.314. HOLIDAY POSSESSION UNAFFECTED BY DISTANCE PARENTS RESIDE APART. The following provisions govern possession of the child for certain specific holidays and supersede conflicting weekend or Thursday periods of possession without regard to the distance the parents reside apart. The possessory conservator and the managing conservator shall have rights of possession of the child as follows:

(1) the possessory conservator shall have possession of the child in even-numbered years beginning at 6 p.m. on the day the child is dismissed from school for the Christmas school vacation and ending at noon on December 28, and the managing conservator shall have possession for the same period in odd-numbered years;

(2) the possessory conservator shall have possession of the child in odd-numbered years beginning at noon on December 28 and ending at 6 p.m. on the day before school resumes after that vacation, and the managing conservator shall have possession for the same period in even-numbered years;

(3) the possessory conservator shall have possession of the child in odd-numbered years, beginning at 6 p.m. on the day the child is dismissed from school before Thanksgiving and ending at 6 p.m. on the following Sunday, and the managing conservator shall have possession for the same period in even-numbered years;

(4) the parent not otherwise entitled under this standard possession order to present possession of a child on the child’s birthday shall have possession of the child beginning at 6 p.m. and ending at 8 p.m. on that day, provided that the parent picks up the child from the residence of the conservator entitled to possession and returns the child to that same place;

(5) if a conservator, the father shall have possession of the child beginning at 6 p.m. on the Friday preceding Father’s Day and ending on Father’s Day at 6 p.m., provided that, if he is not otherwise entitled under this standard possession order to present possession of the child, he picks up the child from the residence of the conservator entitled to possession and returns the child to that same place; and

(6) if a conservator, the mother shall have possession of the child beginning at 6 p.m. on the Friday preceding Mother’s Day and ending on Mother’s Day at 6 p.m., provided that, if she is not otherwise entitled under this standard possession order to present possession of the child, she picks up the child from the residence of the conservator entitled to possession and returns the child to that same place.

While continuity and strict orders are absolute necessities in some cases, some parents find it difficult to go by these standard holiday orders because they conflict with family traditions. Therefore, we have many families who are able to agree upon a holiday possession schedule that allows both parents to fit in their family festivities so that the child does not miss out anything. Most families do not know that their orders allow for this deviation from the standard possession order, even if the visitation is otherwise a standard possession order. In fact, Texas Family Code Section 153.311 mandates court orders to state the following:

Sec. 153.311. MUTUAL AGREEMENT OR SPECIFIED TERMS FOR POSSESSION. The court shall specify in a standard possession order that the parties may have possession of the child at times mutually agreed to in advance by the parties and, in the absence of mutual agreement, shall have possession of the child under the specified terms set out in the standard possession order.

Therefore, if both parents agree upon a different holiday schedule in advance (I advise that you absolutely get it in writing in some shape or form—email, text message, letter, My Family Wizard), then it is okay to deviate from the standard possession order. Most courts encourage parents to try and work something out if they can—it is more peaceful and stable for the child and allows the child to spend quality time with both parents rather than just one.

Christmas is quickly approaching. Do you know your holiday schedule, need one, or need it modified? Contact a family law attorney at Guest & Gray. We offer free consultations and are fully staffed to meet your needs. We look forward to helping you.

You may be just beginning your divorce case or you may be in the middle. Regardless of your current position, there are certain tips that will make this painful process much smoother in the grand scheme of things. In fact, if you would follow these ten easy tips, you would be worlds ahead of other people going through divorces.

Stress management. There are a couple of ways our clients are able to work through the stress that occurs with a divorce; here are a couple of my recommendations: Research and find a counselor with whom you are comfortable. I know, I know—most people hate the word “counseling” and feel as though it would not help them. But, so many of our clients attend counseling and I am amazed at the way they are able to process as we go through the divorce. It does not matter if it is a pastor, licensed counselor, psychologist, psychiatrist, or a free clinic; you just need to talk to someone. The emotional toll of the divorce can be so taxing and many people need help with coping; this includes you. OR if you are not ready to take the counseling step, get out and exercise. Or even better, you can do both. Go for a walk with a friend, join a gym, or attend a fitness class that interests you. Start a fitness routine and it will give you something to look forward to. And remember what Elle Woods says, “Exercise gives you endorphins. Endorphins make you happy. Happy people just don’t shoot their husbands, they just don’t.”

Keep off of social media. I cannot stress enough—do not post anything on any social media account about your soon to be ex, their paramour, the children, the case, etc. While it may feel good at the time, it will only hurt you in the long run. All judges frown upon it and it will make the case harder than it already is.

Maintain your children as what they are, just children. So many parents fall into the trap of venting to their children about the other parent. Do not be one of those parents! Remember that your children are children, no matter their age. They do not want to hear about how their dad is behind on child support. They do not want to hear about mom asking for too much money and not holding up her end of the deal. They should not have to hear such adult things. They just want to know that both parents love them, regardless of what is going on in the grown up world. I suggest, even if your court does not require it, attending the For Kids’ Sake class taught by Dr. Nancy Ferrell. This class helps parents going through divorces understand how their actions, arguments, words, etc. affect their children. It is truly eye-opening and will make you think twice about using your child as a sounding board.

Remain cordial with your spouse. Even if your spouse is sending you nasty text messages and trying to get you riled up, just simply send those texts to your attorney to keep them in the file and do not, I REPEAT DO NOT, respond. That will make them angrier than if you did retort back and play into their childish behaviors. The best advice I have ever heard on this topic is do not text your spouse anything that you would not want the judge to see. Because you can guarantee that if any inappropriate words, videos, or pictures are exchanged they will be on the exhibit list for hearings.

Organizing your case for your attorney. Stress is also relieved when you are able to organize all of your documents, thoughts, and goals for your attorney. If your attorney gives you a packet to complete within a certain amount of time, do it early and complete it to your utmost ability. If you have certain text messages, pictures, or documents that you want the attorney to review have them organized (it will keep your bill down and make life easier for the both of you). For instance, label the documents, put them in chronological order, etc. Also, be sure you are clear to your attorney what your overall goal is in the case; they cannot advise you and keep you on track if they do not know what you ultimately want out of the case.

Have your assets/debts organized. In line with the previous suggestion, you will want to organize your assets and debts into spreadsheets for your attorney. List everything that you can think of, including jewelry, lawn equipment, homes, bank accounts, retirement accounts, vehicles, boats, exercise equipment, home appliances, etc. along with the approximate market values and where you retrieved the information on that value. For the debts, think about who is the creditor, the total amount of the debt, the monthly payments, when the monthly payments are due, etc. Think of this as an inventory for things that will ultimately be divided among you and your spouse. It will keep you and your attorney organized for mediation and hearings.

Relay children’s medical records for expenses. In most cases, one party will be ordered to maintain the health insurance and then the parties will be ordered to 50/50 the unreimbursed medical expenses. If you are the party who mainly takes the children to the doctor, then you will be the party receiving the bill and the party who incurs most of the expenses. Be sure that you understand how it works—in order to be reimbursed 50% by the other party, you must send them the bills. And, to be safe, have proof of sending those bills (ex. certified mail, fax confirmations, etc.) Most orders have certain deadlines, so be mindful of those.

Read your orders! Notice the exclamation point at the end of that. Read them several times, know them in your sleep. This is so important and you will not believe how many people are asked questions about their visitation, requirements, or deadlines and they will tell me that they do not know. However, their orders clearly have exactly what they needed to know within them. It is important that you read and understand exactly what you are signing and agreeing to; if you have questions, no matter the questions, you need to go over that with your attorney. You need to know what you are ordered to do because if you do not and you end up not following the orders, ignorance will not get out of the contempt that you might face with the court.

Communicate with your attorney. Be sure to call and/or email your attorney back promptly. Your attorney relies on you to approve of pleadings, let them know your responses to certain questions, etc. and they cannot proceed forward without your response. Understand that your attorney is doing what you hired them to do—represent you. If you have a deadline coming up that your attorney or their assistant has emailed or called you about, do not make your attorney hunt you down. Send your attorney an email or call their assistant and let them know that you are going to meet the deadline or if you need some help meeting that deadline. Remember, communication is key in any relationship.

Be financially prepared. Your attorney will ask for a retainer upfront to start work on the case; however, if your case is contested you will need to expect to go above that retainer. You will most likely have multiple hearings, mediation, a social study (if there are children), and if necessary a final trial. Divorces can be very expensive and it is important to not be blindsided by that amount. After all, you do not want representation only halfway through your case; you want representation until the very end.

In Texas family law cases, there are two separate types of protective documents that parties can seek. Restraining orders are not to be confused with protective orders. Most often, parties seek a restraining order in a divorce or suit affecting the parent-child relationship to take exclusive possession of property or the children. If a restraining order is needed, it is important to seek the restraining order from the very beginning of the case or at or near the time the need is realized.

For instance, in cases involving children and concerns for their safety, the requesting party requests the court to order that the children be removed from the other party’s custody and placed into the requesting party’s custody solely until the court hearing. This means that once removed, the other party will not have any access to the children until the hearing. To qualify for a temporary restraining order of this nature, one must present an affidavit that on its face alleges that if the court did not grant the restraining order, then the child’s physical health and/or emotional development would be significantly impaired. In many cases, this arises when it is discovered that other parent’s actions, decisions, or behaviors are dangerous for the children. Examples include drugs, criminal activity, neglect, absence of the other parent due to hospitalization, jail, etc.

Restraining orders are typically sought when initial pleadings are filed and they are presented to the judge ex parte (without the other party present). Your sworn affidavit will be attached to the pleadings for the restraining order and will contain all of the information for the judge as to why he/she should grant the restraining order. The hearing will be set the same day the judge signs the order and it must occur within 14 days. Therefore, the court holds a quick hearing to allow the other party time to present their own case. It also gives you a chance to put on evidence and bolster your case as to why the judge made the right decision to grant the restraining order in the first place. At this hearing, you can request that the court continue the restraining order. Thought, often times, the court will not completely deny access to the children but rather grant supervised visitation by an appropriate supervisor; this is, of course, if supervised access is warranted and proven necessary. With that said, there are some cases when the need for a a restraining order to remove children arises while the case is pending. You will still need to submit an affidavit and a request for a restraining order. However, some counties require that you also send notice to the other party/attorney so that they may be present when you present the restraining order to the court initially. The hearing will still be held 14 days from the date the judge signed the order.

There are many scenarios where restraining orders are appropriate measures to ensure that the children and/or your property are protected while the case is pending or while you await a hearing. Call Guest & Gray to schedule your free family law consult and discuss your case is more depth. We look forward to assisting you.